Employment Law Snapshot – Issue 8

Welcome

Welcome to Issue 8 of my Employment Law Snapshot.

This week’s issue continues with the theme of snooping on employees, which seems to have received a lot of press coverage over the last few weeks, particularly in relation to our continental neighbours. It’s probably fair to say that some European employers keep a very close eye on their employees, whereas others… well let’s just say, allow their employees to slip through the cracks.

One highly publicised example in the media this week involved the case of a Spanish civil servant, Señor Joaquín García, who managed to successfully stay off work for 6 years on full pay without it being spotted by his employer! His absence was only noticed when he (ironically) became eligible for a long service award…. Now, I know that UK workers are often envious about the perceived long lunches that are taken by some of our European neighbours, but 6 years is quite some siesta!

However, Señor García’s extended absence didn’t have a happy ending for him, as he was fined £21,000 this week by a Spanish court.

At the other end of the scale, this week’s highly publicised case is concerned with the extent to which an employer can read their employees’ private emails.

The Legal Stuff

This week’s case is called Barbulescu v Romania.

Mr Barbulescu set up a Yahoo Messenger account to deal with client enquiries, at the request of his employer, a Romanian company.

In 2007, Mr Barbulescu was told that his employer had looked at a week’s worth of his Yahoo Messenger communications and that it considered that he had used it for personal purposes.

The company said that Mr Barbulescu had breached their internal rules, which strictly prohibited any personal use of the company’s computers, internet or telephones. Mr Barbulescu denied that he had used the Yahoo Messenger for personal purposes. However, the company then gave him 45 pages of his communications that it had monitored. The transcripts included messages he had exchanged with his brother and his fiancée which contained intimate personal information about his sex life and health.

Mr Barbulescu was dismissed for unauthorised personal use of the internet.

Mr Barbulescu brought a claim in the Romanian courts to challenge his dismissal. His case failed because the court decided that his employer was entitled to monitor the Yahoo Messenger in order to check that he was doing his work properly. The court also found that Mr Barbulescu was told by the company of the rule against personal use of company computers and that his usage would be monitored.

Mr Barbulescu then brought a claim against the Romanian government in the European Court of Human Rights, because he said that it had failed to protect his rights to privacy and correspondence under Article 8 of the European Convention of Human Rights.

The European Court dismissed his case.

Without going into the complexities of the judgement in too much detail, the European Court accepted that telephone conversations, emails and internet usage at work were covered by the right to privacy under Article 8. However, the European Court had to decide whether the Romanian government had got the balance right between the employer’s interests and respect for the employee’s private life. In this case, the European Court was satisfied that the correct balance had been made, particularly because Mr Barbulescu’s employer had clearly stated that personal internet use was strictly forbidden.

This case has caused a lot of confusion recently because of its coverage in the press. This has led many people to believe that the ruling means employers can ‘spy’ on their employees with impunity. This is simply not the case.

It is always sensible for an employer to warn employees that their communications are liable to monitoring, either in the employment contract or in a staff handbook. In the absence of a warning that an employee’s calls, emails or internet usage are be being monitored, an employee would have a reasonable expectation of privacy if they used these forms of communication for personal reasons.

And Finally…

Over the years, I have advised lots of employers about dismissing employees for doing some extremely bizarre things. However, this week, I stumbled across a story in the Ohio Tribune which managed to surprise (even) me.

Apparently, an employee was dismissed for urinating in a co-worker’s coffee mug!!

I don’t know what surprised me more – the incident itself or the fact that the newspaper seemed to miss the obviously ironic fact that the dismissed employee worked for the Warren City water-filtration department……

I know, I shouldn’t take the…… mickey.

Until next time.

Darren